The Subjective Rights

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beginnings of the nineteenth century, along with the independence from Spain, with the suspension of the Real Spanish Hearing as the supreme court of the territory and the beginning of the development of Chilean judicial organizations. This autonomous process continues during the nineteenth century and at the end of this century, there are administrative acts relative to the courts and to the administration of justice (Campos Harriet 1956: 562; Eyzaguirre 2004: 152ff.). During the twentieth century a higher specialization of courts happens, together with the dictation of new acts relative to commerce, mining, work, etc. (Eyzaguirre 2006: 207ff).

The early foundation in 1738 of the first Chilean university, the University of San Felipe, was the first step in the formation of Chilean lawyers. Law, medicine, philosophy, theology, Latin, and mathematics were taught. Distributed in four faculties, the university conferred the degree of doctor in theology, jurisprudence and canons (licensed), in medicine and mathematics, but “it was primarily a School of Law” (Campos Harriet 1956: 47f.). That is, the organizational development of Chilean law can be observed not only in the regular functioning of its courts, but also in activities of the universities, which began in the eighteenth century and had an additional impulse with the creation of the University of Chile in the late nineteenth century.

As previously noted, Chilean law does not arise spontaneously and based on customs, but is established by the Spanish colonial power before the aboriginals.

Chilean law is, this way, a law embedded in organizations and within them it finds its niche and reproductive capacity. In this period of the evolution of Chilean law, there is no “living law” in the sense of Ehrlich (1989: 409ff.), since the decisions, the operative and binding law, were in the hands of organizations of law.

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acquisition of the modern Chilean law. It is the universalist concept of subjective rights.

This institution is particularly important because, throughout the period of influence of Spanish law, it enters in contradiction to the local social structures and allows the anticipation of other later developments, such as the first constitutionalist attempts of the nineteenth century.

The figure of subjective rights comes from the evolution of the Spanish law itself, especially influenced by Castilian law of the ninth century (Eyzaguirre 2006: 76).

This universalist element of law meant to provide freedom to the American aboriginals, as well as to establish obligations for them.

Although the inhabitants of the occupied territories might have become slaves, in accordance with the principles of the Common Law, the Catholic Monarchs recognized early the freedom of the natives. (…) In the Meeting of 1512 celebrated in Burgos a protective Ordinance of the Indians was issued. (Eyzaguirre 2006: 138)

Along with this legal protection of the Indians, there was a systematical practice of abuses that were promptly denounced by the priest Bartolomé de las Casas (1552).

Due to this situation of effective inequality, the legal problem seemed to be solved by giving a special legal status to the Indians, which were considered to be “relative incapable and, as such, subject to protection” (Ezyzaguirre 2006: 183). Nevertheless, the laws from Spain repeatedly insisted on the freedom of the Indians and its subjection as subordinates to the kings of Spain, which brought innumerable problems of the application of these laws in the colonies (Villalobos 2011: 70). Laws concerning the system of work of the Indians, by means of which tribute to the king was paid, such as the Rate of Santillán of 1561 or the Rate of Gamboa of 1580, always found opposition on the part of the colonists and slavery often became a common practice (Hanisch Espíndola 1991).

The contradictions of this principle of equality of rights, with the effective practice of abuses in the treatment of the Indians by the conquerors, are well-known and

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documented. We shall not dwell on these contradictions but rather on the effective consequences for the differentiation of the Chilean legal system. Suffice to say, the universalist principle of the subjective rights, according to which not only the colonists but also the aboriginal population had inherent personal freedoms, enters in contradiction with the existing social structures of its epoch, because it was a pre-adaptive evolutionary acquisition inside a highly stratified society. That is, it is precisely this temporal contradiction that allows us to speak of an evolutionary phenomenon of this type, while it refers only to communicative conditions that they later use to make possible linkages with other structural developments.

From our perspective, the main achievement of subjective rights is the symbolic generalization of normative expectations of the legal communication in all dimensions of meaning, but especially in the social plane. At this level, where the generalization is clearer, normative expectations can be attributed to the whole collective as defined by the law for its application. Thus, normative expectation can be kept available for any conflict that opposes rights of persons as identified by the system. At temporal level, subjective rights allow the stability of normative expectations for the future, which are available in a future that is not yet accurately distinguished. At the factual level, the generalization appears at a level of operations that point at contents of normative expectations recognized by the system, in spite of it still not operating in a differentiated way. From a spatial dimension, this generalization identifies a territory from which it gives validity to its dispositions. This universalization of the subjective rights has also been studied by Luhmann (1995; 1999e) in the context of the functional differentiation of law. Nevertheless in our analysis these rights are related to the symbolic generalization, which later allows the differentiation of a national legal system.

It is interesting to emphasize that the subjective rights, in the context of the evolution of Chilean law, constitute a principle of universalization of normative expectations, something that does not happen in the same way in other functional communications. The religious, political, and economic inclusion, are largely crossed

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by the social stratification of their epoch. This is expressed in that the lower strata and the periphery could only have the role of “public” in these communications and not that of “performer” (Luhmann 1992: 626). For religion, all are God’s children but not everyone can belong to the religious strata or explain the dogmas; politics recognizes all individuals as subjects to the crown, but only the aristocracy can make binding decisions; the economic activities are required for all the strata (even the encomenderos have to manage their lands), but not all can receive or execute payments (Luhmann 1994). In the field of law, however, it is possible to maintain normative expectations, although empirically it is more probable that conflicts resolution will be guided for social interests (of the high strata). This makes it clear that the figure of subjective rights does not allow an encouragement of unfounded optimisms, but rather enables a higher reflexivity in the system concerning the validity of law.

Spanish law was in force in Chile for more than three centuries in which the crown was incessantly faced with the armed resistance of the Indians in southern Chile: the Mapuche. Until the mid-nineteenth century, Spanish law remains to be a reference for the national law and its abandonment occurs rather gradually. The declaration of the independence of Chile in 1810 marks a milestone in the history of Chile but it did not mean, as pointed in the historiography, an immediate separation of the Spanish law.¹⁰⁸ This separation was somewhat gradual throughout the nineteenth century. While Spain maintained control over the territory of Chile, the legal institutions of the Chilean law did not distinguish between political and legal functions (Campos Harriet 1956: 57).

Cabildos and hearings were both political and legal institutions. By the end of the eighteenth century the Spanish government of the Bourbons had already established a set of measures of centralization of its colonial administration. Along with the intervention of the crown in the cabildos (Eyzaguirre 2004: 42ff.), the encomiendas and

108 For a comprehensive study on this situation in the field of criminal law, from the independence until the twentieth century, see Matus (2012: 3-173).

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the personal service were abolished and, thus, the idea of the Indian as a legally incapable was also abolished. This is the situation during the early nineteenth century, when under the political sign of the independence movements and the drafting of the first constitutions, the relationship between law and politics is, for the first time, problematized.